Smt. Sumitra vs Sitaram Patel
2023 Latest Caselaw 614 Chatt

                                       1


                                                                     NAFR
          HIGH COURT OF CHHATTISGARH, BILASPUR
                       F.A. (MAT). No. 81 of 2020

                   Judgment Reserved on : 03.11.2022

                  Judgment Delivered on : 31.01.2023

     Smt. Sumitra, aged about 33 years, wife of Sitaram Patel, R/o

     Village      Ghatmadva        (Gidhouri),   P.S.   Gidhouri,    District

     Balodabazar, Chhattisgarh.

                                                             ---- Appellant
                                    Versus



      Sitaram Patel, aged about 49 years, son of Ganga Ram, R/o

      Village    Girwani,   P.S.    Bhatgaon, Tahsil    Biliagarh,   District

      Balodabazar, Chhattisgarh.

                                                          ---- Respondent



For Appellant       : Mr. C.R. Sahu, Advocate
For Respondent      : Mr. Ramakant Pandey, Advocate


                  Hon'ble Shri Goutam Bhaduri, Judge

                Hon'ble Shri Radhakishan Agrawal, Judge

                             C A V Judgment

Per Radhakishan Agrawal, J.

1. Appellant-Wife preferred this appeal against the judgment and

decree dated 27.01.2020 passed by the learned Family Court,

Balodabazar, District Balodabazar, C.G. in H.M.A. No.66-A of

2019, whereby the suit of husband / respondent for dissolution of

marriage has been decreed and the marriage dated 10.04.2016

of Smt. Sumitra / appellant and Sitaram Patel / respondent has

been dissolved.

2. Averments made in the suit filed under Section 13(1)(i-a) of the

Hindu Marriage Act, 1955 (for short 'the Act of 1955') by the

respondent / husband, in brief, are that he was earlier married to

Firtin Bai and from their wedlock, two daughters and one son

were born. Firtin Bai died on 08.05.2015. After the death of Firtin

Bai, respondent / husband performed Chudi marriage with the

appellant / wife on 10.04.2016 at village Ghatmadva (Gidhori),

P.S. Gidhouri, District Balodabazar. After marriage, wife joined

the company of respondent / husband and from their wedlock,

one male child was born. It was alleged that after 4-5 days of

marriage, appellant / wife insisted him to live separately. As the

parents of the respondent / husband were old-aged and ill-

healthy, he refused to live separately from them as he used to

take care of his parents, on account of which, appellant / wife

started misbehaving with the respondent / husband. She used to

pressurize the husband to live separately with her and also

extended threat that she would implicate him in a criminal case.

It was also alleged that on 27.10.2018, appellant / wife had gone

to her maternal house and after 24-25 days, when respondent /

husband had gone to her matrimonial house to take back her

wife, she refused to get back with him. Since the appellant / wife

continuously treated the husband with cruelty, she did not

discharge her matrimonial obligations towards the husband and

there is no possibility of their living together, he filed a petition for

dissolution of marriage by a decree of divorce.

3. Appellant / wife in her written statement denied all the adverse

averments made by the respondent / husband and stated that

she never wanted the husband to get separated from his old-

aged parents. It was alleged that respondent / husband tortured

and harassed her mentally and physically by calling her 'Dayan',

committed marpeet with her, abused her and also threatened her

of life. It was further alleged that she was thrown away from her

matrimonial house on 28.10.2018 and only then, she had gone

to her maternal house with his son. It was also alleged that

uncle of the appellant / wife went to her husband to bring her

back, then the husband refused to keep her with him. She was

always willing to live with her husband and was trying to save her

marriage. She never made any complaint to the police as she

was under the impression that the husband would keep her with

him and they would lead a happy married life. With the above

averments, the appellant / wife prayed for dismissal of the suit

filed by the respondent / husband.

4. The Family Court considering the pleadings of the respective

parties, the oral and documentary evidence adduced by them, by

the impugned judgment and decree dated 27.01.2020 allowed

the suit and dissolved the marriage performed between the

parties.

5. Learned counsel for the appellant / wife submits that the Family

Court was not justified in granting decree of divorce in favour of

the respondent / husband on the ground of cruelty, the said

finding is perverse and contrary to the material available on

record. From evidence of the appellant and her witnesses, it is

clear that no cruelty was ever committed by the wife to the

husband, rather it is the husband who used to harass and

threaten the wife. The husband filed a divorce petition on the

false ground of cruelty but the learned Family Court did not

consider this aspect of the matter and overlooking the evidence

adduced by the wife passed the impugned judgment. For all

these reasons, the impugned judgment and decree of the Family

Court is liable to be set aside.

6. On the other hand, learned counsel appearing for the respondent

/ husband submits that the Family Court considering all the

relevant aspects of the matter in light of the pleadings of the

parties and the evidence adduced in support thereof has rightly

granted decree of divorce in favour of the husband on the

ground of cruelty. As such, no interference in the impugned

judgment and decree is warranted.

7. We have heard learned counsel appearing for the parties,

perused the pleadings and the evidence available on record.

8. The respondent / husband examined himself as PW-1, and

Krishna Kumar Sahu as PW-2 whereas the appellant / wife

examined herself as DW-1, her uncle Shivprasad as DW-2 and

one Janakram Patel as DW-3.

9. Husband / Sitaram Patel (PW-1) in his examination-in-chief has

deposed that he performed Chudi marriage with the appellant /

wife on 10.04.2016 at village Ghatmadva (Gidhori), P.S.

Gidhouri, District Balodabazar. After marriage, the wife joined the

company of respondent / husband. After one week of their

marriage, she was insisted him to live separately with her. He

deposed that as his parents were old-aged and ill-healthy, he

refused to live separately from them as he used to take care of

his parents, on account of which, she started misbehaving with

him. He further deposed that she used to pressurize the husband

to live separately with her and also extended threat that she

would implicate him in a criminal case. He also deposed that

from the wedlock of appellant and respondent, one male child,

namely, Hansraj Patel was born, who is now living with her

mother. He deposed that on 20.10.2018, a social meeting was

convened, in which, members of social meeting gave advise to

them to live peacefully and if appellant commits any mistake, she

will be proved guilty by the society. After one week, on

27.10.2018, she left her matrimonial house and started living in

her maternal house. When he had gone to her matrimonial

house to take back her wife, she refused to get back with him. In

cross-examination, he admits that he performed Chudi marriage

with appellant / wife and his old-aged parents were living with

him. He deposed that he neither called the appellant / wife as

'Dayan' nor committed marpeet and abused her. He further

deposed that he neither thrown away her wife to his house in the

year 2016 and never written any conditional deed to give one

acre of land as well as Rs.1,00,000/- to the appellant / wife.

10. Likewise, reading of evidence of another witness, namely,

Krishna Kumar Sahu (PW-2) shows that he stood firm to the

statement of Sitaram Patel (PW-1). He stated that appellant and

respondent performed Chudi marriage and lived peacefully but

after few days of marriage, appellant left the company of

respondent and started living in her maternal house.

11. Wife / Smt. Sumitra (DW-1) in her examination-in-chief has

deposed that respondent / husband performed Chudi marriage

with her in the year 2016. After one week of the marriage,

husband started quarreling with her and called her as 'Dayan'

and 'Chudel'. He used to beat and thrown her to her maternal

house. She has further deposed that she used to live with her

husband. She also deposed that respondent / husband had

written a conditional deed on 28.01.2019 stating that he would

give one acre of land as well as Rs.1,00,000/- to the wife, but the

same had not been followed by the husband. She has also

admitted that she did not lodge any report in the police station

against the husband for calling her as 'Dayan'. She has

categorically further admitted that since 27.10.2018, she was

living in his maternal home and during her stay, she did not make

any phone call to her husband to live with him. She also admitted

that she has not filed any application for restoration of her marital

life in any Court.

12. Likewise, Shivprasad (DW-2) and Janakram Patel (DW-3)

supported the evidence of Smt. Sumitra (DW-2).

13. Shivprasad (DW-2) has stated that respondent / husband used to

quarrel and beat the appellant by saying 'Tonhi'. In cross-

examination, he has admitted that he does not remember the

date on which he had gone to respondent's house for sending

her back. It was further stated that appellant had not written any

report in any police station regarding assaulting her or calling her

as 'Tonhi'. There was a meeting in the society, however, no

decision was taken in the said meeting. He has further admitted

that appellant was previously married and have children. He also

admitted that it was second marriage of appellant and

respondent. He lastly admitted that since one year, they are

living apart and there was no conjugal relation between them for

a year. He denied that he has not made any conversation with

the respondent for sending the appellant to his house.

14. Janakram Patel (DW-3) is the President of Patel Society. He

deposed that in a meeting convened on 28.01.2019,

respondent / husband had written a conditional deed that he

would give one acre of land, in default, made payment of

Rs.1,00,000/- to the wife, but the same had not been followed by

the husband. He also stated that he neither go to the police

station regarding tourtouring the appellant or calling her as

'Tonhi' nor give any advice regarding lodging of any report to the

police station.

15. From the scrutiny of the evidence, it is apparent that after

sometime, marital life of the appellant and respondent were not

happily, thereafter, the appellant, without consent of the

respondent and his family members, many times went to his

maternal house. It is also manifest from the evidence that the

appellant was pressurizing the respondent to live separately,

otherwise, she will implicate him in a criminal case and send him

to jail. Oral and documentary evidence adduced by the

respondent also makes it clear that he had tried many times to

settle their dispute by involving reputed persons of their society

and also by giving application to their social forum, but, the

appellant had never honoured such attempts.

16. In case of V. Bhagat v. D. Bhagat (Mrs.) reported in (1994) 1

SCC 337, the Hon'ble Supreme Court held that mental cruelty in

Section 13(1) (i-a) can broadly be defined as that conduct which

inflicts upon the other party such mental pain and suffering as

would make it not possible for that party to live with the other. In

other words, mental cruelty must be of such a nature that the

parties cannot reasonably be expected to live together. The

situation must be such that the wronged party cannot reasonably

be asked to put-up with such conduct and continue to live with

the other party. It is not necessary to prove that the mental

cruelty is such as to cause injury to the health of the petitioner.

While arriving at such conclusion, regard must be had to the

social status, educational level of the parties, the society they

move in, the possibility or otherwise of the parties ever living

together in case they are already living apart and all other

relevant facts and circumstances which it is neither possible nor

desirable to set out exhaustively. What is cruelty in one case

may not amount to cruelty in another case. It is a matter to be

determined in each case having regard to the facts and

circumstances of that case. If it is a case of accusations and

allegations, regard must also be had to the context in which they

were made.

17. In order to find out the cruelty apart from a physical cruelty,

mental cruelty has been defined by the Supreme Court in case of

Samar Ghosh v. Jaya Ghosh reported in (2007) 4 SCC 511,

which are reproduced herein below :

"101. No uniform standard can ever be laid down for guidance, yet we deem it appropriate to enumerate some instances of human behaviour which may be relevant in dealing with the cases of 'mental cruelty'. The instances indicated in the succeeding paragraphs are only illustrative and not exhaustive.

(i) On consideration of complete matrimonial life of the parties, acute mental pain, agony and suffering as would not make possible for the parties to live with each other could come within the broad parameters of mental cruelty.

(ii) On comprehensive appraisal of the entire matrimonial life of the parties, it becomes abundantly clear that situation is such that the wronged party cannot reasonably be asked to put up with such conduct and continue to live with other party.

(iii) Mere coldness or lack of affection cannot amount to cruelty, frequent rudeness of language, petulance of manner, indifference and neglect may reach such a degree that it makes the married life for the other spouse absolutely

intolerable.

(iv) Mental cruelty is a state of mind. The feeling of deep anguish, disappointment, frustration in one spouse caused by the conduct of other for a long time may lead to mental cruelty.

(v) A sustained course of abusive and humiliating treatment calculated to torture, discommode or render miserable life of the spouse.

(vi) Sustained unjustifiable conduct and behaviour of one spouse actually affecting physical and mental health of the other spouse. The treatment complained of and the resultant danger or apprehension must be very grave, substantial and weighty.

(vii) Sustained reprehensible conduct, studied neglect, indifference or total departure from the normal standard of conjugal kindness causing injury to mental health or deriving sadistic pleasure can also amount to mental cruelty.

(viii) The conduct must be much more than jealousy, selfishness, possessiveness, which causes unhappiness and dissatisfaction and emotional upset may not be a ground for grant of divorce on the ground of mental cruelty.

(ix) Mere trivial irritations, quarrels, normal wear and tear of the married life which happens in day to day life would not be adequate for grant of divorce on the ground of mental cruelty.

(x) The married life should be reviewed as a whole and a few isolated instances over a period of years will not amount to cruelty. The ill-conduct must be persistent for a fairly lengthy period, where the relationship has deteriorated to an extent that because of the acts and behaviour of

a spouse, the wronged party finds it extremely difficult to live with the other party any longer, may amount to mental cruelty.

(xi) If a husband submits himself for an operation of sterilization without medical reasons and without the consent or knowledge of his wife and similarly if the wife undergoes vasectomy or abortion without medical reason or without the consent or knowledge of her husband, such an act of the spouse may lead to mental cruelty.

(xii) Unilateral decision of refusal to have intercourse for considerable period without there being any physical incapacity or valid reason may amount to mental cruelty.

(xiii) Unilateral decision of either husband or wife after marriage not to have child from the marriage may amount to cruelty.

(xiv) Where there has been a long period of continuous separation, it may fairly be concluded that the matrimonial bond is beyond repair. The marriage becomes a fiction though supported by a legal tie. By refusing to sever that tie, the law in such cases, does not serve the sanctity of marriage; on the contrary, it shows scant regard for the feelings and emotions of the parties. In such like situations, it may lead to mental cruelty."

18. The Hon'ble Supreme Court in case of K. Srinivasa Rao v. D.A.

Deepa reported in (2013) 5 SCC 226 wherein it has been held at

paragraphs 30 and 31, which read as under :

"30. It is also to be noted that the appellant- husband and the respondent-wife are staying apart from 27/4/1999. Thus, they are living separately for

more than ten years. This separation has created an unbridgeable distance between the two. As held in Samar Ghosh (supra), if we refuse to sever the tie, it may lead to mental cruelty.

31. We are also satisfied that this marriage has irretrievably broken down. Irretrievable breakdown of marriage is not a ground for divorce under the Hindu Marriage Act, 1955. But, where marriage is beyond repair on account of bitterness created by the acts of the husband or the wife or of both, the courts have always taken irretrievable breakdown of marriage as a very weighty circumstance amongst others necessitating severance of marital tie. A marriage which is dead for all purposes cannot be revived by the court's verdict, if the parties are not willing. This is because marriage involves human sentiments and emotions and if they are dried-up there is hardly any chance of their springing back to life on account of artificial reunion created by the court's decree."

19. Further, in case of Smt. Vijaya Laxmi Soni v. Raj Kuma Soni

reported in 2009 (2) CGLJ 72 (DB), this Court held that when re-

union or restitution of conjugal rights becomes impossible

between the parties, dissolution of marriage by a decree of

divorce is the only effective remedy for the welfare of the parties,

rejected the appeal and marriage between the parties dissolved

by a decree of divorce.

20. Hon'ble Supreme Court in case of Vishwanath Agrawal

v. Sarla Vishwanath Agrawal reported in (2012) 7 SCC 288 has

held that "The expression 'cruelty' has an inseparable nexus with

human conduct or human behaviour. It is always dependent

upon social strata or the milieu to which the parties belong, their

ways of life, relationship, temperament and emotions that

conditioned by their social status. The facts and circumstances

are to be assessed emerging from the evidence on record and

thereafter, a fair inference has to be drawn whether the petitioner

in the divorce petition has been subjected to mental cruelty due

to the conduct of others.

21. In case of Narendra v. K. Meena reported in (2016) 9 SCC 455,

the respondent-wife wanted the appellant-husband to get

separated from his family. The evidence of that case

shows that the family was virtually maintained from the income of

the appellant-husband. In that circumstances, Hon'ble Supreme

Court has observed that :-

"..... It is not a common practice or desirable culture for a Hindu son in India to get separated from the parents upon getting married at the instance of the wife, especially when the son is the only earning member in the family. A son, brought up and given education by his parents, has a moral and legal obligation to take care and maintain the parents, when they become old and when they have either no income or have a meagre income. In India, generally people do not subscribe to the western thought, where, upon getting married or attaining majority, the son gets separated from the family. In normal circumstances, a wife is expected to be with the family of the husband after the marriage. She becomes integral to and forms part of

the family of the husband and normally without any justifiable strong reason, she would never insist that her husband should get separated from the family and live only with her.

......... As stated hereinabove, in a Hindu society, it is a pious obligation of the son to maintain the parents. If a wife makes an attempt to deviate from the normal practice and normal custom of the society, she must have some justifiable reason for that and in this case, we do not find any justifiable reason, except monetary consideration of the respondent wife. In our opinion, normally, no husband would tolerate this and no son would like to be separated from his old parents and other family members, who are also dependent upon his income. The persistent effort of the respondent wife to constrain the appellant to be separated from the family would be tortuous for the husband and in our opinion, the trial court was right when it came to the conclusion that this constitutes an act of "cruelty"."

22. The evidence on record goes to show that the appellant / wife is

of rigid nature and has no regards to the matrimonial obligations.

The evidence on record also goes to show that the respondent /

husband made all possible efforts to safe his marital life. It also

goes to show that from appellant / wife wanted to live separately

from her in-law and had pressurized the husband to live

separately. They are living separately since 27.10.2018 and no

cohabitation took place between them since 27.10.2018.

23. The evidence available on record would suggest in definite terms

that the appellant / wife without any just and reasonable cause to

reside separately from the husband, therefore, the same would

construe as a cruelty towards the husband. Evidence as

discussed above is satisfactory for us to take a view

that the appellant / wife has treated the respondent / husband

with cruelty and also that wife forcing husband to get separate

from his family including his old aged parents, is commission of

mental cruelty by wife upon husband. Under these

circumstances husband is entitled to get decree of divorce.

24. Keeping in view the principles of law laid down by the Hon'ble

Supreme Court in the aforesaid cases, the facts and

circumstances of the case as well as overall evidence available

on record, we cannot say that there is any much less clinching

material to show that the impugned judgment and decree calls

for an interference.

25. The learned Family Court has discussed the entire evidence and

has reached to the finding that the husband has proved the

cruelty. On appreciation of evidence, we do not find any

perversity in the findings recorded by the Family Court. The

impugned judgment and decree is just and proper warranting no

interference of this Court.

26. As an upshot, the appeal, sans substratum, is liable to be and is

hereby dismissed, leaving the parties to bear their own cost(s).

27. However, it is apparent from the agreement [Ex.NA2(C)] dated

28.01.2019 that respondent / husband wishes to give one acre of

land to the appellant / wife, but there was no description of land

in the agreement dated 28.01.2019, in order to avoid further

litigation between the parties, it would be appropriate for us to

grant alimony of Rs.5 Lacs to the appellant / wife in terms of

Section 25 of the Act of 1955. Accordingly, it is directed that the

respondent / husband shall pay a sum of Rs.5 Lacs to the

appellant / wife.

28. A decree be drawn accordingly.

                      Sd/-                                      Sd/-       -
               (Goutam Bhaduri)                     (Radhakishan Agrawal)
                   Judge                                   Judge
Yogesh